Author: Brian Frye


Preliminary Reflections on Wal-Mart v. Dukes

Thanks to Josh Blackman’s remarkably prompt summary, you all know that the Supreme Court unanimously reversed in Wal-Mart v. Dukes.  Based on the oral argument, that isn’t much of a surprise.

I also recommend Sergio Campos’s excellent analysis of the Court’s treatment of commonality.  As he points out:

Setting aside whether the Court was right as to the merits of the plaintiffs’ evidence in support of a common pattern-or-practice, whether there is such a common pattern-or-practice is common to the class. That’s all the “commonality” requirement requires!

My own instant analysis?  For better or worse, it rather looks like the Court is adapting Twombly/Iqbal to class action certification.


Mining for Bitcoins

A friend of mine alerted me to this interesting article on “Bitcoin,” a “P2P virtual currency” launched in 2009, which appears to be a form of virtual “gold,” intended to be used as digital money.  A quick search showed that opinions on its legitimacy are decidedly mixed:  some people think it’s great & others think it’s a scam.  I’m no economist, but I can’t help wondering why Bitcoins aren’t unregistered securities.  Uh-oh?  Maybe someone will be hearing from the SEC?


At the Brainwash

In Exit Through the Gift Shop (2010), the anonymous British artist Banksy documented the transformation of Thierry Guetta from a used clothing salesman and amateur videographer into the art star “Mr. Brainwash.”  The film is a droll sendup of the art world, culminating in Guetta’s wildly successful monster art show, which consists exclusively of asinine Banksy knockoffs.  Among other things, Guetta’s artwork prominently features reproductions of an iconic photograph of 80s rappers Run-D.M.C.  For example, “Old Photo” (pictured) combined the Run-D.M.C. photograph with an anonymous 19th century photograph.

But the joke was on Guetta.  Glen E. Friedman, the author of the Run-D.M.C. photograph, sued Guetta for copyright infringement in the Central District of California (Friedman v. Guetta, Case No. CV 10-00014 DDP).  Guetta responded that the Run-D.M.C. photograph lacked originality and claimed fair use, but on May 27, 2011, Judge Pregerson granted Friedman’s motion for summary judgment.  Unsurprisingly, Pregerson held that the original photograph was sufficiently original.  But Pregerson also rejected Guetta’s fair use defense, finding that Guetta’s use of the photograph wasn’t transformative because he and Friedman both used it in a work of visual art, and that Guetta infringed on the market for the photograph because Friedman licenses it commercially.
On the law, Pregerson’s decision is surely correct.  At least it tracks the outcome of the recent Cariou v. Prince case and the older Rogers v. Koons case in finding appropriation art insufficiently transformative for fair use.  But why?  In each case, the infringing work looks different from the original work, so it is “transformative,” at least in the literal sense.  Of course, appropriation deprives original authors of license fees, but the ultimate question is whether they are entitled to such fees in the first place.
Interestingly, courts and commentators often focus on the right of original authors to control their work.  As Pregerson put it, “Without such protection, artists would lack the ability to control the reproduction and public display of their work and, by extension, to justly benefit from their original creative work.”  But why does justice require that authors control and benefit from uses of their work, other than copying?  Indeed, is justice even the relevant standard?
Of course, Guetta is an astonishingly bad artist.  As Banksy muses in Exit Through the Gift Shop, “Andy Warhol was replicating images to show they were meaningless.  And now, thanks to Mr. Brainwash, they’re definitely meaningless.”  But doesn’t fair use protect meaningless art, too?

Martha Coakley & the Terrible, Horrible, No Good, Very Bad Nonprofit Board Members

Massachusetts Attorney General Martha Coakley and her allies in the Massachusetts Senate are pushing a bill that would prevent Massachusetts nonprofit organizations from paying their board members, unless they obtain a waiver from the Attorney General’s office.  Apparently, Coakley proposed the bill when she learned that certain Massachusetts nonprofit health insurance companies paid their directors five-figure salaries. According to Coakley, “[g]etting paid creates an appearance of a conflict of interest.” Some commentators have criticized the bill, arguing that many nonprofit organizations have good reasons to compensate their directors.

While Coakley’s push to monitor nonprofits more closely is commendable, her focus on board compensation is puzzling.  Of course, most nonprofits do not compensate their board members.  On the contrary, many nonprofits expect or require their board members to make a financial contribution.  But it is not clear why Coakley believes that paying directors creates a conflict of interest, especially in the case of the organizations in question, which provide highly-skilled directors a relatively modest compensation in order to do a substantial amount of work (“3-4 hours per week”).  On the contrary, one might expect compensated directors to pay special attention to their duties, in order to ensure that they retain the position and maintain the financial health of the organization.
Interestingly, Coakley’s proposal implicitly focuses on large nonprofits and ignores small ones.  Many – if not most – nonprofits could not compensate their directors even if they wanted to.  They can’t afford it.  In fact, many small nonprofits find it very difficult to recruit competent and committed board members.  Often, the problem isn’t a conflict of interest, but a lack of interest.  Many nonprofit board members don’t care about their fiduciary duties to the organization, or don’t even realize those duties exist.  And an absentee board is an invitation to trouble.  Coakley is focusing on nonprofits that are aggressively recruiting board members.  I hope she directs her attention to those that don’t.

War Don Don Screening

On Monday, May 9 at 7:30 p.m., Flaherty NYC will present Rebecca Richman Cohen’s film War Don Don at Anthology Film Archives in New York City.

War Don Don documents the war crimes trial of RUF leader Issa Sesay in the Special Court for Sierra Leone.  Richman Cohen brings an interesting perspective to the film.  Before making War Don Don, she worked on the defense team for Alex Tamba Brima, who was also prosecuted for war crimes in the Special Court for Sierra Leone, and ultimately convicted.

The film asks difficult questions about the legitimacy and purpose of international criminal justice, which she discusses here and here, among other places.  Richman Cohen will attend the screening and participate in a discussion with filmmaker Deborah Dickson.

I will post on the film and discussion next week.


Scenes of a Crime & the Full Frame Documentary Film Festival

On April 16 & 17, Penny & I attended the second half of the Full Frame Documentary Film Festival in Durham, North Carolina.  We saw several new films that addressed legal issues, which I plan to write about here.
The festival presented its grand jury award to Scenes of a Crime by Grover Babcock and Blue Hadaegh, which argues that Adrian Thomas of Troy,   New York was convicted of murdering his infant son on the basis of a false confession.  In September 2008, Thomas’s four-month-old Matthew Thomas died from brain trauma.  Over the following two days, Troy police interrogated Thomas for about 10 hours.  At first, Thomas insisted that he did not hurt his son, but eventually, he confessed to slamming his son onto the bed.